In life, there are situations in which strangers to each other people are forced to live on the same territory. This can be, for example, spouses who divorced, but continue to live in the same apartment, since they do not have other housing, several heirs who got the apartment from the testator, moreover, these are not always relatives, and so on.
Not wanting to give up their part of the housing, they have to live together. On this basis, disputes, misunderstandings, reproaches, claims and scandals often arise. The way out of this situation may be to determine the procedure for using the apartment in shared ownership. We will talk about this in the article.
When do I need to determine the order of use of housing?
Usually, shares in an apartment belong to relatives who inherited it, or to spouses who divorced. In both cases, citizens are not actually family members and do not conduct joint farming. At the same time, the question arises of determining the procedure for using an apartment in shared ownership.
It is best to establish this order ourselves on a voluntary basis. For this purpose, a written agreement is concluded, where the owners stipulate all the moments of using the apartment. The best option would be to certify this document with a notary.
For example, Alexander and Svetlana Ivanov lived in an apartment that they purchased together after the wedding. A few years later, the couple parted and divided the property. However, neither Alexander nor Svetlana had nowhere to go to live, and the purchase of a spouse's share was also impossible for them. In this regard, they had to live together in the same territory.
The apartment was two-room with separate rooms. Therefore, using these rooms they had no problems. But with regard to the kitchen and bathroom, they could not agree. Alexander often brought home friends with whom he drank alcohol. Moreover, he did not take them to his room, but settled down with them in the kitchen. Naturally, Svetlana did not like this. But Alexander also had discontent about the fact that Svetlana was drying things in the bathroom. As a result, the former spouses had to conclude an agreement according to which Alexander stopped making friends and staying in the kitchen, and Svetlana no longer dried her clothes in the bathroom.
How can shared ownership be used?
The establishment of the procedure for using an apartment in shared ownership is influenced by various factors, in particular:
- Sizes of shares.
- The number of living rooms. If there are enough of them for each of the owners - this is one thing, and when there are more owners, then determining the appropriate order can be much more difficult.
- The number of residents. So, if there are two of them (former spouses who are the owners), but a minor child lives with them, then the wife is allocated a room with more than square meters.
- Do residents have other housing.
- The presence of family ties between the tenants.
- Layout. Often in apartments - walk-through rooms. Naturally, no one would want other residents to constantly invade his personal space.
The ideal is the case in which the number of individual rooms is no less than the number of owners. Then each of them is allocated a room, and common areas continue to be shared. In this case, a communal apartment is obtained.
But if the apartment is in shared ownership and it is not possible to allocate a room for each tenant in it, for example, in the case of odnushka, then it is best for one owner to buy back a share of another. Usually the one who owns a large share buys a smaller one. But other ransom options may also be established. Owners can also agree, for example, to use the apartment periodically. Then, in the established period, one of them lives there, who then leaves and another owner moves into the apartment for a certain period of time.
How to determine the appropriate order?
When determining the procedure for using an apartment in shared ownership, the rules that tenants establish for themselves and among themselves must be observed. They can be established or established.
The first option takes place when a certain way has developed between the owners of both the operation of the rooms and the common rooms (kitchen, bathroom, bathroom, hallway). In this case, this procedure suits everyone, and no one wants to change anything.
The situation is more complicated in cases in which the owners have claims against each other. Then you need to try to resolve issues through negotiations. If you can’t agree on anything, you have to go to court.
Determining the procedure for using an apartment in shared ownership means that each of the owners owns a certain room or part of it, mainly in proportion to their share of the property. Also stipulated are the rules for using the kitchen, bathroom and other common areas.
Of course, it’s best if the share of each of the owners of the apartment in kind is allocated or the share is redeemed. But this is not always achievable. Sometimes during the allocation it is necessary to redevelop. In the case of a house, solving the problem is much simpler than with an apartment, when it is almost impossible to do. In addition, the owners do not always have money to buy back their share. Therefore, they have to agree on a procedure that will suit everyone.
There are 2 options for allocating a share in kind in an apartment. It:
- Reaching a voluntary agreement.
- The solution of the issue through the judicial authority.
It is much better to negotiate with each other independently, as this helps to maintain good relations between the residents. It will also take much less time than a trial. In this case, the tenants themselves decide which room will be given to whom and how the common areas will be used. The agreements reached are fixed by concluding an agreement in writing.
If you fail to agree, then the parties have no choice but to go to court. But in this case, you must follow the order in which you should adhere to the pre-trial settlement of the dispute. To this end, you need to contact other owners with a proposal to conclude an agreement. It is better to send the document by registered mail via mail. It is allowed to transmit it personally, but the addressee must sign the fact of receipt. This is evidence of an attempt to resolve the issue peacefully.
The agreement does not have to be certified by a notary. You can even limit yourself to verbal agreements. However, if one of the parties violates the agreements reached, then it will be very difficult to prove it. In addition, the parties may agree on the sale of an apartment in shared ownership.
Conclusion of an agreement
If the owners have been living together for some time, a certain procedure for the use of the premises has already developed and there are no complaints against each other, this indicates the achievement of verbal agreements. But in order to insure yourself for the future, for example, if someone decides to change the established way of life, it is worth concluding an agreement in writing. For this purpose, the text prescribes the conditions on which premises each tenant will use and how the common premises will be used.
The document will gain legal force after each of the tenants puts their signature on the agreement. It is also possible to contact a notary public. Then the document will receive even greater “weight”. But in life, such agreements, unfortunately, are rarely concluded. In the presence of peace, this simply does not arise, and in the presence of mutual reproaches and claims, the parties, as a rule, cannot agree and go to court.
If it is decided to sell the apartment or redeem part of it, a contract of sale of a share in the apartment is concluded. This often leads to debate about the cost. To avoid disputes, it is worth calling a real estate appraiser who will set the real price.
Court Ordering
The main condition for establishing the appropriate order is the location of the apartment in common shared ownership. The share in the room, communal apartment is already divided. There, each of the owners is the sole owner of a separate room or part thereof. Therefore, the court can only be contacted to determine the operation of the kitchen, bathroom and other similar places.
Another condition is that only the owner of the apartment share is entitled to file a lawsuit. Thus, even if a citizen is registered in the apartment, but is not legally a co-owner, he is not entitled to apply to the court.
Action algorithm
An applicant who filed a claim with a court to dispose of property held in shared ownership must adhere to a certain procedure, in particular:
- Make an attempt to peacefully resolve the dispute by contacting the other party or parties with a proposal to get out of the current situation, including by concluding an agreement on the sale of a share in an apartment.
- If this does not help, you can start preparing for the trial. To this end, you need to collect the required documents.
- Next is a lawsuit. It is better to contact an experienced lawyer with this request, since errors in the preparation of this document are fraught with a refusal to accept the application for consideration or lead to a delay in the trial.
- Take part in the hearing. The process can take more than one month. Therefore, in the absence of time to attend meetings, this right can also be assigned to a lawyer.
- Appeal a court decision. This is done if it did not suit the party.
- Get a court decision and a writ of execution on hand. Sometimes defendants do not want to carry out the decision. Then the plaintiff should contact the bailiff service. The main document by which these specialists act is the writ of execution. On its basis, they open proceedings on the case, and force the defendant to execute the court decision.
Documents
Together with the lawsuit, the court should submit the following documents:
- Several copies of the statement of claim (one for the court, others for the participants in the process, and one for themselves).
- Copy of ID card.
- Extract from the USRN.
- A document confirming the right of common shared ownership of the apartment.
- Documents confirming an attempt to resolve the dispute peacefully.
- Technical passport for real estate.
- A receipt with a paid state duty.
If in the future it is planned to sell the stake, but the plaintiff wishes to first draw up a procedure for use, he will need a document from the real estate appraiser.
The timing
The application review period depends on many factors, in particular:
- Attendance of participants at the meeting.
- The position of the counterpart.
- Availability of necessary documents.
- Other points.
One way or another, the trial lasts at least 2 months.
Cost
According to Art. 333.19 of the Tax Code, the amount of the state duty for this dispute is 300 rubles. The required amount will increase if the plaintiff wishes to contact a lawyer. So, the preparation of an application can cost from 1 to 3 thousand rubles. Separately, you will need to pay for the representation of the plaintiff by a lawyer.
Statement of claim
The law does not establish a form of action. At the same time, strict requirements are set for its compilation, which are set out in Art. 131 Code of Civil Procedure of the Russian Federation. In particular, it should contain the following information:
- The name of the court.
- Personal data of the parties.
- Title of the document.
- Grounds for the emergence of ownership of a share in the premises.
- Sizes of shares.
- Description of the room with the number of rooms, their location, description, area of ​​utility rooms and other.
- The essence of the dispute.
- Indication of pre-trial settlement attempts.
- Claim.
- List of attached documents.
- Date and signature.
Legal framework
When considering such claims, the courts are guided by the following provisions:
- Article 35 of the country's main law (Constitution).
- Article 247 of the Civil Code of the Russian Federation.
- Article 307 of the Civil Code of the Russian Federation.
- Article 3 LCD RF.
- Article 30 LCD RF.
Also, the court decision depends on the specific circumstances of the case.
Case Study: Invasion of Foreign Territory
Citizen Nikolai Petrov is the owner of a share in the apartment. In addition to him, two more co-owners live in it. Without permission, they periodically enter Nikolai’s room. At the same time, they refuse to conclude any agreements. Petrov filed a lawsuit demanding the establishment of an appropriate procedure by force.
Since Nikolai previously attempted to conclude an agreement, the court reviewed the case and ruled in favor of the plaintiff. The allocated room is his personal property, and no one has the right to enter it, just as Nikolai cannot enter without premises in premises belonging to other residents. There are no restrictions on sharing sites.
Case study: "getting on your nerves"
If one of the spouses does not need a room, since he has other housing, where he lives, but he applied only to tickle the nerves of the other side, the court is unlikely to decide in favor of the plaintiff. Thus, if one of the spouses does not live in the apartment, then the other has the right to occupy the room with the best characteristics.
For example, after the divorce, Natalya Petrova remained to live in the kopeck piece, which was acquired together with her ex-husband Nikolai. The latter moved to odnushka, bought by him before marriage. One of the two rooms of the shared apartment is a walk-through, and the other has a larger area compared to the first. It turns out that the rooms are clearly unequal. However, Nikolai, who had moved to his odnushka, filed a lawsuit demanding that a larger room remain at his disposal. At the same time, he did not want to sell his share, and also did not live in the disputed apartment. The former wife of Nikolai, Natalya Petrova, filed a lawsuit. She asked the court to determine her stay in a comfortable large room. The court granted the plaintiff.
Case study: living with a daughter
Spouses Svetlana and Alexander Ivanov purchased a two-room apartment, the area of ​​which is 60 square meters. During the period of family life, they had a daughter. The couple decided to divorce, after which each of them got a separate room. They didn’t manage to part, since the ex-husband did not agree to sell a share in the apartment of a minor child
Alexander took a large room, the area of ​​which is 20 square meters. m. At the same time, Svetlana and her daughter had to huddle in a small room. Svetlana’s requests to swap rooms did not affect Alexander. In this regard, Svetlana had to go to court with a request to transfer her to use a room of 20 square meters. m, where the former spouse is located. The court, of course, took the side of the plaintiff, and ordered Alexander to transfer the large room to Svetlana for use with her daughter.
Allocation of a share
If the matter is decided in court, then you need to be prepared for great difficulties. It is much easier to allocate a share in the case of a private house. Particular difficulties arise with a small area of ​​the premises, but a large number of owners. Allocation of a share in kind is fraught with various problems. When considering a case, the court proceeds from specific circumstances. In particular, factors such as:
- Age.
- The presence of a child or his / her absence.
- Professional activity of participants in the process.
- Disability.
- Other factors.
One way or another, when deciding how to register ownership of an apartment in an apartment, the answer will be unequivocal: going to court.
If the apartment is municipal
The current legislation does not contain rules on the use of municipal housing by tenants. The procedure referred to earlier applies only to housing that belongs to individuals by right of ownership. The requirement to transfer specific premises in a municipal apartment for use is possible only if the social loan agreement is changed.
According to Part 2 of Art. 69 LCD RF, tenants of such housing are equal in respect of rights and obligations. Therefore, each of these persons uses the premises on an equal footing. In this regard, it is not possible to determine the procedure for using the premises. If tenants cannot agree, then there is only one way out of this situation: register the apartment as a private property. Sometimes tenants ask themselves whether it is possible to privatize a share in an apartment. – . . , . – .
Conclusion
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